Re: H. (D.), 2025 CanLII 52810

Re: H. (D.)

ORB File No: 5886

Hearing held on: Tuesday, May 13, 2025

Place of hearing: Ontario Shores Centre for Mental Health Sciences 700 Gordon Street, Whitby

Pursuant to: Section 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. J. Goldenberg Members: Dr. K. Hand Dr. G. Stones Hon. E.R. Kruzick Mr. R. Rainboth

Parties Appearing:

Accused: H. (D.) Counsel: Ms. J. Boissonneault

The Person in charge of Hospital: Counsel: Ms. J. Szabo

Attorney General of Ontario: Counsel: Ms. N. MacDonald

REASONS FOR DISPOSITION

(Dated: June 2, 2025)

Introduction:

1On May 30, 2011, H. (D.) was found not criminally responsible on account of mental disorder (NCR) on one charge each of breach of probation order and arson - damage to property, contrary to the Criminal Code of Canada (Criminal Code). As a result, he is currently subject a disposition of the Ontario Review Board (ORB or Board) dated October 28, 2024 where he is discharged from the Ontario Shores Centre for Mental Health Sciences (Ontario Shores or hospital) subject to a number of conditions including that he report to the hospital not less than once per month. The disposition also provided for a review within six months of its issuance.

2On May 13, 2025, pursuant to last year’s Disposition, October 28, 2024, a panel of the Board convened at Ontario Shores to conduct Mr. H. (D.)’s review pursuant to s. 672.81(1) of the Criminal Code. Mr. H. (D.) attended the hearing in person and was represented by his counsel, Ms. J. Boissonneault.

Issues to be Decided

3The issues to be decided at the hearing were whether Mr. H. (D.) continued to meet the test of posing a significant threat to the safety of the public and, if so, the necessary and appropriate Disposition bearing in mind the four factors set out in s. 672.54 of the Criminal Code.

Position of the Parties

4At the outset of the hearing, all the parties were asked to state their initial positions, without prejudice.

5On behalf of the hospital, Ms. Szabo indicated that it is the position of the hospital that Mr. H. (D.) does not pose a significant threat to the safety of the public and expressed that the hospital’s position was that Mr. H. (D.) should be granted an Absolute Discharge. Ms. McDonald, counsel for the Attorney General, agreed with the position of the hospital.

6Ms. Boissonneault, on behalf of Mr. H. (D.), agreed and stated that this was a joint submission.

Findings

7For the Reasons that follow, on the evidence, the panel found that significant threat is not met, and, that appropriated disposition is absolute discharge of Mr. H. (D.).

Index Offence

8The allegations giving rise to the index offence are set out in the Hospital Report at pages 2 and 3. They were summarized in last year’s Reasons as follows:

“On January 3, 2011, Mr. H. (D.) was 16 years of age. He resided with his grandparents in Port Hope, Ontario. Shortly after midnight, his grandparents retired for the night and his grandmother asked Mr. H. (D.) to do so as well. After his grandparents went to sleep Mr. H. (D.) was bored and he began playing with a lighter, flicking it on and off and putting the flame to the bedding to see if it would catch fire. He apparently intended to put the fire out if one started. The bed did catch on fire, and Mr. H. (D.) was unable to extinguish it. Scared that his grandparents would be angry with him, he quickly dressed and left the house without waking them. He knocked on a neighbour’s door looking for help, but did not get an answer and left the area. About 1:30 a.m. the smoke alarm went off and wakened the grandparents. They were able to exit the home, but Mr. H. (D.)’s grandfather returned to the burning house on several occasions as he believed Mr. H. (D.) was still in his bedroom. The house burned to the ground and three of the family’s cats were killed. Mr. H. (D.) was located later at his biological father’s residence in Port Hope

At the time of the fire Mr. H. (D.) was subject to a probation order related to offences of theft under $5000, possession of stolen property, and escape lawful custody. The probation order required that he keep the peace and be of good behaviour.”

9The arson and the subsequent destruction of the family home were the result of Mr. H. (D.)’s severe deficits in cognitive reasoning and judgement in the context of his diagnoses, which included pervasive developmental disorder.

Background

10Mr. H. (D.)’s background personal history is set out in detail in the Hospital Report. Briefly, Mr. H. (D.) is a 31-year-old man who lived with his biological parents and brother until the age of four. While in the care of their parents the children experienced social-emotional deprivation. His grandparents obtained legal guardianship of Mr. H. (D.) and his siblings when his parents were unable to care for them as a result of their own developmental delays and diagnoses. In the home of the grandparents the care of the children was stable and positive.

11The Hospital Report states that Mr. H. (D.) had a history of developmental delays and social challenges. He had delays in speech, fine motor skills, gross motor skills, visual perceptual skills, and exhibited aggressive impulses. He also demonstrated significant cognitive, academic, and social difficulties. Mr. H. (D.)’s numerous assessments diagnosed, at varying times, Pervasive Developmental Disorder (PDD), Intellectual Disability in the Moderate range, PDD with Autistic Features, Conduct Disorder, and ADHD.

12Mr. H. (D.) received special education supports throughout his school career. His Ontario school record revealed a pattern of fairly poor performance throughout his early years of school, however once he switched into a Learning and Life Skills program his performance improved significantly. Mr. H. (D.) attended Port Hope High School from 2007 to 2011 and continued to take courses following his arrest for the index offences.

13The Hospital Report stated that following commission of the index offences Mr. H. (D.) was remanded into custody to the Kennedy Youth Centre in February 2011. He was transferred to the Syl Apps Youth Centre Secure Treatment Program on August 4, 2011, and then to Ontario Shores on March 20, 2014.

14The Hospital Report included the following paragraph taken from the Syl Apps Hospital Report which described Mr. H. (D.) as (at page 6):

“vulnerable to negative peer influence and his peers have taken advantage of him on occasion (e.g. asking him for money). According to his 2011 psychoeducational report, DJ misunderstands social cues and his social skills are commensurate with a younger peer group. Previous reports also indicated that DJ can become easily overwhelmed and may resort to fight or flight mode. He also has had a tendency to fixate on female peers, where in the past he has followed women and female peers, believing he was in an intimate relationship with them, when in fact, he was not, or he had just met them.”

15Mr. H. (D.) has a daughter who is approximately three years of age. The child resides in Oshawa with her mother. Due to conflict with the child’s mother Mr. H. (D.) has not been able to visit with his daughter.

16Currently, Mr. H. (D.) resides at a Developmental Services Ontario (DSO) home in North Oshawa that is semi-independent. The house was initially supported 24 hours a day; however, in June 2023 it transitioned to staff being physically present during the day and available by phone at night.

Legal History

17At the time of the index offences Mr. H. (D.) was subject to a probation order related to offences of theft under $5000, possession of stolen property and escape lawful custody. The particulars of those convictions are not known.

Current Diagnoses

18Current Diagnoses as set out in the Hospital Report are: Intellectual Disability (Pervasive Developmental Disorder) and Attention Deficit/Hyperactivity Disorder (combined type).

Evidence

19The Hospital Report dated March 31, 2025, was made an exhibit at the hearing. In addition, Dr. Pallandi, who co-authored the report testified.

20Since the last ORB hearing, in October, 2024, Dr. Pallandi stated that Mr. H. (D.) has had a positive reporting period. Mr. H. (D.) has successfully maintained his shared supportive housing and navigated through some interpersonal conflict with his housemates. He continued to adhere to his prescribed medication regime and maintained a stable clinical presentation with the introduction of legal substances into his life. His relationship with Dr. Pallandi and the hospital team is positive.

21As was hoped, after the last hearing, even with drinking alcohol and using cannabis, which was not unexpected, given Mr. H. (D.)’s history and stated intention to continue using alcohol and cannabis periodically, there was no change observed in Mr. H. (D.) mental health or status. Dr. Pallandi testified that there were no concerns raised by the group home staff related to his use. Initially, Mr. H. (D.) used cannabis daily and drank alcohol 3-4 times a week, however, this was not sustained because Mr. H. (D.) could not afford to continue use of that frequency. At the time of the preparation of the Hospital Report, Mr. H. (D.) reported using cannabis once or twice a week and drinking alcohol once very one or two weeks.

22At all times Mr. H. (D.) has been cooperative with the hospital team. He has made himself available to provide urine samples upon request. Since the substance prohibition was removed from the ORB disposition Mr. H. (D.)’s tests revealed results for cannabis less than 50 percent of the time. Mr. H. (D.) stated that he never drank more than four drinks in one sitting and “did not get drunk, just buzzing.” The urine samples did not produce a positive test for alcohol even though Mr. H. (D.) reported drinking alcohol.

23Since his last ORB hearing, Mr. H. (D.) re-engaged in a relationship with his former girlfriend after breaking up for approximately four weeks. Mr. H. (D.) had shared with the treatment team that they have the occasional argument, which they easily reconcile. Mr. H. (D.) spends the majority of his time with his girlfriend noting that he finds the relationship supportive. Mr. H. (D.)’s girlfriend attended the hearing was introduced to the panel by Mr. H. (D.).

24In his testimony, Dr. Pallandi confirmed that there were no concerns that he, the housing or clinical staff had regarding Mr. H. (D.)’s alcohol and drug use.

25With respect to adhering to his prescribed medications, Mr. H. (D.)’s family physician, Dr. Nadesan is currently prescribing Mr. H. (D.)’s medication and will continue to provide follow-up care if Mr. H. (D.) is discharged absolutely from the ORB. Dr. Pallandi testified that Mr. H. (D.) has routinely acknowledged that his medication is helpful and plans to continue taking is medication in perpetuity.

26Regarding housing, Dr. Pallandi testified that Mr. H. (D.) will continue to reside at Participation House though Developmental Services Ontario (DSO) where he receives ongoing support from their staff. There is the possibility of Mr. H. (D.) transitioning to more independent DSO housing within the community when it becomes available. The proposed accommodation would continue to serve Mr. H. (D.)’s needs.

27When Dr. Pallandi was asked whether the housing would accommodate a couple (i.e. Mr. H. (D.) and a partner), Dr. Pallandi confirmed that it would.

28At the request of counsel for Ms. H. (D.), the Alt. Chair granted counsel time to speak to Mr. H. (D.) privately.

29No other evidence was called.

Submissions

30After hearing the evidence, the positions of counsel for all parties remained unchanged. As a result, this was a joint submission for an absolute discharge. In her submissions, counsel for the Attorney-General added that in her long personal involvement with Mr. H. (D.)’s file, she observed a marked improvement in his demeanour and well-being and commended him on his progress and success.

Analysis and Conclusion

Significant Threat

31The panel examined the evidence closely on the issue of significant threat as set out in s. 672.5401 and as expanded by the jurisprudence. As set out by the Court of Appeal in Carrick (Re), 2015 ONCA 866, the “significant threat” standard is an onerous one. Mindful of the joint submission of counsel at this hearing, on the evidence the panel independently finds that significant threat is not supported by the evidence we heard. In coming to our conclusion, the panel accepts the expert evidence of Dr. Pallandi at the hearing and as set out in greater detail in the Hospital Report.

32The panel is mindful that in the last disposition of the ORB (October, 2024), the panel expressed concern about Mr. Hough’s proposed intent to use alcohol and substances. In its assessment of significant risk to the safety of the public, that panel concluded, on the evidence at that hearing, that the intended use of substances by Mr. H. (D.) posed risk to the safety of the public which needed to be further assessed. Since the last hearing, the six-month period allowed Dr. Pallandi and the hospital team to closely follow Mr. H. (D.) and to gather further information of Mr. H. (D.)’s substance use and its effect on Mr. H. (D.)’s mental status, behaviours and his risk profile.

33At this hearing Dr. Pallandi testified to Mr. H. (D.)’s improved insight and to his and the hospital team’s confidence that, notwithstanding the use of legal substances, Mr. H. (D.) poses a low threat to the safety of the public.

34The panel accepts the evidence of Dr. Pallandi that neither he, nor the clinical or housing staff have concerns regarding the alcohol or non-prescribed drug use by Mr. H. (D.). The evidence which we accept is that Mr. H. (D.)’s use of substances has been predicable, typically financially limited and is not accompanied by any perceptible change in Mr. H. (D.)’s mental health and level of risk.

35As set out in the Hospital Report, the panel accepts Dr. Pallandi’s testimony that Mr. H. (D.) has done well in the six months since his last ORB hearing and that he had a positive reporting period. There were no changes or concerns observed in Mr. H. (D.)’s mental status. In Dr. Pallandi’s opinion, the earlier concerns about the use of legal substances, while reasonable, proved to be unfounded.

36In the end, Dr. Pallandi testified that Mr. H. (D.)’s risk to the safety of the public is low and below the level of the threshold of significance.

Disposition

37Considering the evidence we accept, as set out in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), 1999 2 S.C.R. 625, the panel bears in mind that an Absolute Discharge should be granted unless the court or Review Board, is able to conclude that an NCR person poses a significant risk to the safety of the public.

38Where we accept the evidence that Mr. H. (D.) poses no significant risk to the safety of the public and that the necessary and appropriate Disposition in this case is an Absolute Discharge.

Conclusion

39Jurisdictional threshold of significant threat is therefore not met. As a result, while recognizing public safety as our ‘paramount consideration’, pursuant to s. 672.54 of the Criminal Code, the necessary and appropriate Disposition that is the least onerous and least restrictive is an Absolute Discharge.

40As conveyed to Mr. H. (D.) at the hearing by a member of the panel, he is to be commended for his progress and the effort he has made in working with Dr. Pallandi and the hospital team. The panel wish Mr. H. (D.) every success in his future endeavours.